William Fisher, CopyrightX, Lecture 11.3, Supplements to Copyright: Tech Protection Measures

William Fisher, CopyrightX, Lecture 11.3, Supplements to Copyright: Tech Protection Measures


The story of how most
countries in the world came to adopt legal reinforcements
for technological protection measures, commonly known TPM’s, is
very long and complicated. In this last segment
of the lecture, I’ll provide you an abridged
version of the story. If you’d like more detail you
might consult chapter three of my book, Promises to Keep, from
which this abridged version will be distilled. In the early 1990’s,
entertainment companies dismayed by the increasing
frequency with which digital copies of their products
were being copied and redistributed, and by the apparent inability of
the law to halt this behavior, began to experiment with encryption
as an alternative way of preventing, or at least discouraging,
unauthorized uses their products. Examples of such experiments included
the content scramble system, commonly known a CSS, which is used
to inhibit reproduction of the copies of audiovisual
works housed on DVDs, the secure digital music
initiative, commonly known as SDMI, which was supposed
to provide even stronger protection for sound recordings, and
the Real Audio and Real Video format’s developed by the
firm Real Networks that enabled users of those formats to turn
on or off of a virtual switch, which controlled whether person’s to
whom formatted works were streamed could make copies of this works. As the entertainment
companies soon discovered, this strategy was at best imperfect. Every time they deployed one of these
technologies someone, surprisingly often a teenager, would crack it. Once the technological
wrappers had been removed, the naked digital files could
be re-distributed promiscuously. So the entertainment companies
began to look to the law for aid. To understand the nature
of the strategy it may help to turn, once
again, to copyright theory. You’ll recall, I hope, that the premise
of the welfare theory of copyright, and of intellectual property in general,
is that intellectual products are public goods that will be
produced at suboptimal levels unless the government
intervenes in some way to stimulate their
creation and dissemination. Over the centuries, governments
had used five different techniques to provide the necessary stimulus. The five options, with which
you should now be familiar, are listed on your screen. Until this point in the lecture,
we have been overwhelmingly concerned with the fifth
option, the essence of which is that the government protects authors
and artists against competition– in other words, forbids competitors
to make, distribute, or perform copies of their works
without permission. That, as you well know, is the
fundamental principle of copyright law, at least as seen through
the lens of welfare theory. When the entertainment companies
sought the assistance of the law in buttressing their
shaky encryption systems, they were in effect stepping
outside the zone of copyright law and relying on an altogether
different approach. In particular, they were employing
a variant of strategy number four. They were relying upon a
self-help approach, specifically technological protections
for copies of their works, and soliciting legal
reinforcement for that strategy. In this respect, their approach
was analogous to trade secret law. In that context as well, companies
rely on self-help, specifically efforts to keep their innovations secret,
but then turn to the law for aid when economic espionage or faithless
employees cause that secrecy to fail. In short, the entertainment
companies new approach was not really an example of copyright law at
all, even though, as you’ll see, they plugged the statutory reforms
they sought into the copyright statute in the United States. In truth, this approach is a
different animal altogether and had quite different
strengths and weaknesses. For that reason, it’s sometimes
referred to as paracopyright. OK. Back to our story. The law in the United States
as it existed in the mid-1990’s failed to provide the entertainment
companies the aid they sought. To be sure, the federal statutes
contained a few specialized provisions that forbade circumvention of
particular encryption systems. For example, it was illegal
to manufacture or distribute devices designed to descramble the
signals provided by cable television systems or digital
satellite systems, but there was no provision forbidding
encryption circumvention in general. Judge-made law was even more unhelpful. For example, in the case of Volt
Corporation vs. Quaid Software the Fifth Circuit Court
of appeals had ruled that the creation and sale of a software
program designed to circumvent the copy controls on a diskette did not
make the creator of such a program liable for contributory
copyright infringement, because the program had a substantial
non-infringing use, mainly enabling the making of archival copies. And as I explained in lecture number
nine, in the Sega enterprises case the Ninth Circuit had refused to
find a game manufacturer liable when it circumvented Sega’s lockout
mechanism preventing unlicensed game developers from building games
compatible with its Genesis console. So, existing law was unhelpful the
companies therefore sought new law. The path to the reforms they
wanted proved circuitous. First, they plead their case to the
Information Infrastructure Task Force, commonly abbreviated as the IITF, the
group appointed by President Clinton to articulate and implement
the administration’s vision for the National
Information Infrastructure. The crucial subcommittee within
the IITF was the working group on intellectual property
rights chaired by Bruce Lehman, a former copyright
industry lobbyist who had recently been appointed the
commissioner of patents and trademarks. Lehman and the IITF proved receptive. In their preliminary report, known
as the “green paper,” and again in their final report,
known as the “white paper,” they recommended the
adoption of a quote, “prohibition on devices,
products, components, and services that defeat technological
methods of preventing unauthorized use of
copyrighted materials.” Ignoring the objections of some
vigorous critics of this proposal. Surprisingly however, Congress was
more attentive to the critics arguments and moreover was distracted by an
upcoming election, and as a result failed to adopt the
administration’s recommendation. So Mr. Lehman cleverly pursued
an alternative approach. Instead of continuing to
pound on Congress’s door, he turned to treaty making. In 1996 in his capacity as
the United States delegate to the World Intellectual
Property Organization, Lehman pressed for adoption
of a new treaty that would embody the critical
provisions of the now rejected argument in the white paper. He didn’t get all that
he wanted, but he was able to secure– specifically in Article
11 of the WIPO Copyright Treaty– a moderate version of the provisions
that he had originally sought. Quote, “contracting parties shall
provide adequate legal protection and effective legal remedies
against the circumvention of effective technological measures
that are used by authors in connection with the exercise of their rights under
this treaty or the Berne Convention. And that restrict acts in
respect of their works, which are not authorized by the authors
concerned or by or permitted by law.” Lehman then returned to the United
States and approached Congress with a new argument. Congress, he argued, needed to modify
federal law in the United States to fulfill the obligations to
which the United States would soon be subject under the new treaty. There ensued a protracted hard fought
battle among the relevant interest groups, a battle chronicled
by Pam Samuelson. Lehman and his allies eventually
emerged bloody but victorious, specifically as part of the
Digital Millennium Copyright Act, as you now know conventionally
abbreviated to DMCA. They obtained two new
provisions now embodied in sections 1201 and 1202
of the copyright statute. Of the two provisions,
1201 is the more important. The critical language is
indicated on your screen. Section 1201(a)(1)(A) provides that no
person shall circumvent a technological measure. It effectively controls
access to copyrighted work. Section 1201(a)(2) provides that no
person shall manufacture or import, offer to the public, provide or
otherwise traffic in any technology product service device component or
part thereof that is primarily designed or produced for the purpose
of such circumvention. Finally, section 1201(b)
contains a similar ban on the production or distribution
of technology, primarily designed to circumvent technologies
that effectively protect the exclusive rights
of a copyright owner– the exclusive rights to
reproduce the work adapted, performed publicly, and so forth. Parties injured by
violations of these rules can bring civil lawsuit to halt
the practices and collect damages. In addition, willful
violation of the rules for commercial advantage
or personal gain subjects the offender to
substantial criminal penalties. As you undoubtedly noticed, there
are some important ambiguities in these provisions. What exactly does circumvent mean? For example, if I give my password to a
friend who then uses it to gain access to a copyrighted recording
or program, have I or has she circumvented the
technological protection system that requires that password? What does it mean to effectively
control access to a copyrighted work? What activities other than
manufacturing and distributing are encompassed by
the ban on trafficking in circumvention technologies? Some of these ambiguities are addressed,
though not with great clarity, by definitions contained in
other parts of the statute. The prohibitions contained
in 1201(a) and 1201(b) are tempered, as you can see, by a
list of exceptions, some of which are also vague. For example, technologies
that are not primarily designed for circumvention have a
more limited commercially significant purpose other than convention and
are not marketed for circumvention are exempt. Nonprofit libraries, archives,
and educational institutions are sometimes permitted to
engage in circumvention in order to decide whether to
acquire copyrighted work. Circumvention activities for the
purpose of reverse engineering to achieve interoperability
among computer programs, security testing, encryption research,
and controlling minors access to pornography
are all privileged. Finally, every three years
the librarian of Congress is required to promulgate
regulations exempting from the anti-circumvention
provision persons who would otherwise be adversely affected in their
ability to make non-infringing uses. The most recent round
of regulations in 2010 generated some intriguing safe harbors. In culmination, the
importance of the issues addressed by these statutory
provisions and the ambiguity of several of their dimensions have generated
a great deal of litigation. The principal cases
are listed on the map. If you follow the links you will find
summaries of their facts and holdings and copies of the opinions themselves. In the first and arguably most
important wave of these cases, the copyright owner’s that
had pressed for these statutes and that stood to benefit most from
expensive interpretations of them prevailed decisively. In later cases, however,
the courts have rejected especially aggressive
applications of the provisions. A very rough generalization concerning
the pattern of outcomes in these cases is that the more they have to do with
the kinds of entertainment products that initially provoked the statute–
music, films, games, and so forth, the more likely the courts are to find
that the behavior of the defendants were unlawful. By contrast, in cases
where the plaintiffs have sought to rely on these
statutory provisions to support business models unrelated
to traditional entertainment products the courts have been
much less sympathetic. That’s a crude guideline, to be
sure, but for better or worse it has some explanatory force. By way of illustration, I’ll
describe two of the cases. Here’s the first. In 1999, John Johansen,
a 15-year-old Norwegian, reverse engineered a licensed DVD player
and used the information he obtained to write a short program designed
to descramble a signal that had been scrambled by the CSS security system–
the system that I described a minute ago that is designed to
prevent ripping DVD’s. Johansen’s program, which he
called DCSS, was relatively simple. The original version consisted
of 60 lines of computer code. It has since been reduced to seven. Although Johansen’s original purpose
apparently was the relatively benign goal of developing a DVD player that
could operate on the Linux operating system, his creation enabled many
other less innocent uses of the video recordings distributed on DVD’s. Once descrambled, they could be
stored, compressed, reproduced and redistributed. Copies of DCSS spread
quickly over the internet. Within a month, many websites offered
user-friendly downloadable versions the program in both source
code and object code. The major film studios, seeking
to stop or at least slow the spread of what they
regarded as an infection, invoked the DMCA to demand that
the operators of those websites remove the program from their servers. Some of those operators,
including Eric Corely, the editor of a print
magazine boldly named 2,600: The Hacker Quarterly, and an
accompanying website refused to comply. In response, the studios brought suit,
accusing Corley and others of quote, “trafficking in
circumvention technology.” Judge Lewis Kaplan found that the
defendants had indeed violated Section 1201(a)(2), the ban on trafficking
in technology designed to circumvent restrictions on access
to copyrighted works. In his judgment, none of the
statutory exemptions were applicable. He then rejected the defendant’s
argument that the statute so construed would violate the First Amendment’s
protection for freedom of speech. In his final ruling, Kaplan
ordered the defendants to remove the program for
their servers, and more controversially, to disable all
hyperlinks to other websites where copies of the
program could be found. The Court of Appeals for the Second
Circuit affirmed, like Judge Kaplan, the Court of Appeals found all
of the exemptions inapplicable, nor did the statute, even
when thus broadly construed, violate the First Amendment. The court conceded that the
anti-trafficking provisions in general and as applied in this
case, did restrict speech, but that restriction it
ruled is content neutral, advances a substantial government
purpose unrelated to the suppression of expression, mainly
assisting copyright owners and preventing unwanted
access to their property, and burdened speech no more than
necessary to achieve that end. And thus, it’s constitutional. The ruling in the Corley
case seems to have had little effect on the
distribution of DCSS. While the case was ongoing,
hackers and Corley sympathizers continued to distribute the program in
a wide variety of formats– on t-shirts, in the form of a haiku,
set to music, and so forth. On the other hand, the ready
availability of DCSS on the internet still today does not seem to
have adversely affected the use or profitability of commercial DVD’s. The revenues generated
by which are tracked by the yellow sectors of
the graph on your screen. As you can see, the ready
availability of DCSS starting in 1999 certainly did not prevent the DVD format
from conquering the home video market. Perhaps copyright owner’s
anxiety was unfounded. In any event, the Corley case
has proved highly influential. Its crucial features include a lenient
interpretation of the requirements that technological protection
measures effectively control access to a copyrighted work, an expansive
interpretation of the prohibition on trafficking in circumvention
technology, rejection of the position that TPM’s must accommodate the
privileges traditionally enjoyed by users under the fair use
doctrine, and last but not least, the declaration that despite
these interpretations, the statute does not run afoul
of the federal constitution. An example of a decision that took
a more skeptical view of TPM’s and invocations of the
law to reinforce them, is Chamberlain, decided
by the Court of Appeals for the Federal Circuit in 2004. Chamberlain manufactures and
sells garage door openers, these are devices that enable homeowners
to avoid the inconvenience of getting out of their cars to open their
garages when they returned home. A homeowner need only press a button
on the remote control depicted at the bottom of this
photo, and the machine depicted at the top of the
photo will cause the door open. Chamberlain’s system
incorporated a copyrighted quote, “rolling code,” close quote, computer
program that constantly changed the transmitter signal needed
to open the garage door. Now as you know, with
some frequency homeowners lose or break the remote controls
necessary to run their systems. The defendant in this case,
Skylink, catered to such consumers, offering them replacement
generic remote controls capable of opening
Chamberlain’s doors, as well as those of other garage
door opening companies. Chamberlain was unhappy,
primarily it seems because Skylink was undercutting
Chamberlain’s ability to sell its own replacement
remote controls. So Chamberlain brought a DMCA suit
against Skylink contending that Skylink’s products quote, “circumvent
the security inherent in rolling codes,” close quote, and
therefore that quote, “Skylink is in violation of
the anti-trafficking clause of the DMCA’s anti-circumvention
provisions, specifically 1201(a)(2),” close quote. Court of Appeals for the Federal Circuit
eventually rejected this claim ruling broadly that 1201 prohibits
only forms of access that bare a reasonable relationship to
the protections of the Copyright Act otherwise affords copyright owners. As David Nimmer, the
son of Melville Nimmer and a notable copyright
scholar in his own right, points out it’s very difficult to derive
such a limitation on the scope of 1201 from the language of the statute or
from the legislative history, and indeed the Court of Appeals for the Ninth
Circuit in the more recent MDY case, refuse to follow the Federal
Circuit in restricting the reach of the
statute in this fashion, but MDY involved video games,
not garage door openers. Though the statute itself makes no
reference to the nature of the device in which the copyrighted work
guarded by the TPM is embedded and thus as Nimmer argues the
distinction between Chamberlain and MDY is hard to justify on the basis
of statutory interpretation. It’s neither surprising,
nor terribly troubling, that the courts are more protective
of entertainment products where unauthorized reproduction
is arguably pernicious than they are of more industrial
products where we have long thought competition is
socially beneficial. So that’s where things currently
stand in the United States. The legal reinforcement of TPM’s
is by no means limited to the US. 90 countries currently are
signatories to the WIPO Copyright Treaty and the WIPO Performances
and Phonograms Treaty that as we’ve seen impose
on member countries duties to adopt and enforce rules
of this general sort. How have other countries sought
to implement the principle? The responses, as you might
expect, vary considerably. As my colleague Urs Gasser points out,
the language of the relevant treaty provisions leave member
countries considerable discretion on several fronts. Most importantly, the
treaties leave countries free to decide whether
to buttress only TPM’s that reinforce the kind of exclusive
rights enjoyed by copyright owners, namely the rights of production,
distribution, public performance, and so forth. Or also TPM’s that limit user’s ability
to gain access to copyrighted works. The countries are also free if
they could figure out how to do so, not to penalize circumventions of
TPM’s for the purpose of exercising one of the privileges recognized
by the copyright system, such as the privilege of
engaging in fair uses. On the latter issue, the European Union
has adopted an approach very different from the United States. You’ll recall that in
the US the DMCA contains a list of specific exemptions
to the coverage of Section 1201 plus an administrative mechanism
enabling the Librarian of Congress periodically for three years
to add additional exceptions. That list is widely considered to be
very narrow, enabling copyright owners in the United States to use TPM’s
to curtail lots of activities that they would be unable
to forbid by invoking the regular rights under the
copyright statute itself. The EU, by contrast,
requires member countries to create mechanisms to ensure the TPM’s
do not interfere with the privileges that consumers enjoy under copyright
law, unless the right’s holders develop and implement such
mechanisms voluntarily. Gasser points out the
countries within the EU have sought to accommodate
that obligation differently. Greece and Lithuania,
for example, have set up mediation systems in
hopes of reconciling TPM’s with the traditional
privileges of users. The United Kingdom has set up a
special administrative mechanism that purports to enable aggrieved
users to challenge TPM’s that constrain their freedom to make lawful
uses of copyrighted materials. And Ireland permits aggrieved
users to appeal directly to the Irish High Court. Whether any of these mechanisms
is effective is far from clear, but they at least purport to tilt
the scales more toward consumers than does the United States. During the past 15 years, controversy
over legal reinforcement of TPM’s has been intense. My guess, for what it’s
worth, is that in the future the controversy will gradually fade. The reason is not because countries
will converge upon a solution to this issue that satisfies all
parties, that’s extremely unlikely. The reason rather, is that TPM’s
and their legal supplements are designed primarily to
protect business models that rely upon distributing copies of
copyrighted works to consumers. Increasingly nowadays the
businesses that have traditionally depended on copyright law are shifting
to cloud-based business models that do not depend upon providing
consumers copies of works. As a result, for better or
worse, technological shields enveloping such copies
will become less important. At the same time, alternative
practical and legal mechanisms for preserving the traditional
privileges of consumers will become more important. Thanks for your attention. Next week we’ll take up the last of
the topics in this lecture series– the remedies the law provides
for copyright infringement.

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